Gowers critiqued
Thanks to Jordan Hatcher for reporting an AHRC Research Centre for Studies in IP open forum, which discussed The Gowers Review of Intellectual Property. The discussions had a strong Scottish flavour, but the criticisms reproduced here also apply generally.
Gowers’ strengths
* Improving the research exception in patent law, to bring greater flexibility and greater growth to the sciences).
* Copyright exceptions for distance learning and library / archival purposes.
* An Office of Fair Trading investigation of collecting societies was welcomed for potential benefits to artists and authors.
* Rejection of ‘music industry’ calls for an extension of the copyright term extension for sound recordings
Gowers’ weaknesses
* The system of voluntary registration of copyright would not be effective. Most orphan works that museums and libraries (in particular) are interested in are of the type that would never be registered (such as family photos).
* The recommendations to improve patent quality are welcome, but unlikely to actually improve patent quality. In addition, the recommendations failed to recognise work that is already ongoing on in this area.
* The recommendation for a private copying exception for format shifting is generally unworkable. (How does one regulate the allowance of a single copy per new media format? Creating a legal right to do so would be unlikely to produce change in consumer behaviour.
Gowers’ structural faults
* Not enough time given to comprehensively review the area of law, or the 440+ public submissions
* The Gowers Review was characterised as an instance of ‘evidence influenced ‘ policy making rather than the ‘evidence based’ approach that the Report itself claims to take (although - notes ian Brown - even this is an improvement on the bad old days of ‘evidence free’ IP policy).
* A bigger question, which Gowers failed to address, is which Ministry should be ‘the one’ to deal with IP — although it was suggested that a cross government body on IP may be preferred.
February 13th, 2007 at 11:41 am
Some short responses to the criticisms posted:
* The system of voluntary registration of copyright would not be effective. Most orphan works that museums and libraries (in particular) are interested in are of the type that would never be registered (such as family photos).
– The Berne convention requires copyright to be awarded ‘without formalities’ i.e. without a mandatory legal registration. Nevertheless, voluntary registration systems can be effective - cf. the US copyright system in which there is an incentive to register commercial work as prior registration is a mandatory requirement to be able to enforce your copyright through the courts.
* The recommendations to improve patent quality are welcome, but unlikely to actually improve patent quality. In addition, the recommendations failed to recognise work that is already ongoing on in this area.
–That’s rather pessimistic. Beth Noveck’s work is promising, and worthy of a UK trial.
* The recommendation for a private copying exception for format shifting is generally unworkable. (How does one regulate the allowance of a single copy per new media format? Creating a legal right to do so would be unlikely to produce change in consumer behaviour.
–It’s not a perfect solution, but by providing an avenue to make private copying legal, it will reduce the chance of the law being seen to be an ass. One should not be retrospectively reducing the rights of content creators on the same principle that one shouldn’t retrospectively increase the term of copyright on sound recordings.
Gowers’ structural faults
* Not enough time given to comprehensively review the area of law, or the 440+ public submissions
–There is never enough time!
* The Gowers Review was characterised as an instance of ‘evidence influenced ‘ policymaking rather than the ‘evidence based’ approach that the Report itself claims to take (although - notes ian Brown - even this is an improvement on the bad old days of ‘evidence free’ IP policy).
–Where did the report fly in the face of the evidence?
* A bigger question, which Gowers failed to address, is which Ministry should be ‘the one’ to deal with IP — although it was suggested that a cross government body on IP may be preferred.
–This question was addressed through the suggestions by the CBI, among others, that there should be an IP minister. I doubt that this would have solved any coordination or profile problem particularly effectively (it seems Andrew Gowers agreed) and the internal plumbing of Whitehall, together with the Strategic Advisory board and the research facility are the keys to effective policy-making
December 2nd, 2007 at 8:20 pm
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